Circuit Keeps Lid Closed on al-Qahtani Footage

MANHATTAN (CN) – Pictures and footage of alleged “20th hijacker” Mohammad al-Qahtani must remain under wraps because they would be “singularly susceptible to use by extremist groups to incite anti-American hostility,” the 2nd Circuit ruled Tuesday. Qahtani was turned back from an Orlando airport weeks before the Sept. 11, 2001 terrorist attacks. Sent back to his native Saudi Arabia, Qahtani surfaced at the Afghanistan border on Dec. 15, 2001, where Pakistan forces captured and transferred him to U.S. custody. He became one of Guantanamo’s first prisoners two months later, and remained there for six years before being charged with a crime. In 2008, then-Convening Authority Susan Crawford dropped his prosecution without prejudice because she found that his brutal interrogation in custody “met the legal definition of torture.” The Center for Constitutional Rights, a nonprofit that represents Qahtani and other Guantanamo detainees, filed a Freedom of Information Act request more than four years ago for footage and photographs of his interrogations. While the CIA refused to confirm or deny the existence of the images, the FBI and Department of Defense identified six photographs and 53 videotapes of Qahtani inside his cell, but refused to release them under the classification exception. One video captured a forced cell extraction and two depict intelligence debriefings. U.S. District Judge Naomi Buchwald refused to release the images because extremist groups could use them as propaganda to provoke attacks against U.S. troops. In June, the civil liberties group warned the 2nd Circuit that affirming the decision could prevent the release of any detainee images. The appellate court unanimously disagreed on Tuesday, in a 17-page decision stating that Qahtani’s unique case required secrecy. “It is of course true that, if invoked reflexively by the government, and accepted unquestioningly by reviewing courts, the ‘propaganda’ justification could shield a broad range of documents of significant public interest, in contravention of FOIA’s central purpose,” U.S. Circuit Judge Jose Cabranes wrote for the panel. “The possibility that a particular justification might be abused, however, does not render it meritless in all circumstances. … “Whether the government’s justifications for withholding information in the name of national security go too far is a question that must be evaluated in the context of the particular circumstances presented by each case.” While the government denies that the specific images that Qahtani’s lawyers seek depict his torture, the appellate court agreed that the release of any of them – “even images that do not depict abuse or mistreatment ? could be exploited by extremist groups as tools to recruit or to incite violence.” Judges Susan Carney and Christopher Droney joined in the opinion. Casting the scope of their ruling as limited, the panel wrote: “We do not now hold that every image of a specifically identifiable detainee is exempt from disclosure pursuant to FOIA, nor do we hold that the government is entitled to withhold any documents that may reasonably incite anti-American sentiment.” The Center for Constitutional Rights did not immediately respond to a request for comment.